20 Questions for Solicitor General Kagan

20 Questions for Solicitor General Kagan

As Elena Kagan's confirmation hearings begin, here are 20 questions we think she should answer.

"We the People"

In 1819 in the Dartmouth College case, Chief Justice John Marshall stated that a "corporation is an artificial being, invisible, intangible, and existing only in contemplation of law." Do you agree with this description and with his conclusion that, "Being the mere creature of law, it possesses only those properties which the charter of creation confers upon it, either expressly, or as incidental to its very existence"?

Do you agree with Justice Byron White's position in First National Bank of Boston v. Bellotti that, as economic entities shielded by laws favoring them with limited shareholder liability and perpetual life, corporations do not have to be further granted the political rights of the people? Do you agree with Justice White's famous admonition that, "The State need not permit its own creation to consume it"?

It has been said that the three most important words in the Constitution are "We the People" because they specify the citizenry as the sovereign authors of the Constitution. Does this phrase include the BP Corporation or its American subsidiaries? Does it include the Massey Corporation and Goldman-Sachs?

In assessing the accelerating claims by corporations that they enjoy constitutionally protected political freedoms, do you think it relevant--under textualist, originalist, or democratic theories of interpretation--that the word "corporation" appears nowhere in the original Constitution or the Bill of Rights?

Do you agree that the Constitution extends the protections of the Bill of Rights to all natural persons in the United States and their voluntary associations but not to "artificial entities" like corporations?

Most major companies have their own political action committees (PACs) which raise money from company executives and board members to spend and give in politics. In Citizens United, the Court said that those executives and board members may now take money directly out of their corporate treasuries to spend in politics. Whose First Amendment rights of political speech were secured by this ruling—if anyone's?

Approach to Judging

Although reviled as one of the worst Supreme Court decisions in history, the Dred Scott decision was a masterpiece of "originalism." It takes up page after page explaining that an African-American could never be a "Citizen" within the meaning of the diversity jurisdiction clause because the Founders designed the Constitution as a compact among white men and repeatedly manifested their intent, both in the text of the Constitution and in federal and state law, to exclude African-Americans from the system of civil rights and political freedom. Even if this argument about the Framers' "original intentions" is substantially correct, does it follow that Dred Scott should not have been found to be a "citizen" within the meaning of the Constitution itself? Had you served on the Taney Court, would you have cast your vote with the majority or the dissenters in the Dred Scott decision and, if you would have sided with the dissenters, on what constitutional grounds?

To the extent that "originalism" is an interpretive method that is part of many or all constitutional theories, should it be applied only to the original Constitution or does it apply with equal weight to later Amendments, such as the Fourteenth Amendment commands of Equal Protection and Due Process? Should the history of Reconstruction and the Radical Republicans in Congress be as relevant to the Supreme Court's work as the history of the Convention in Philadelphia? And for those protections in the Bill of Rights that were incorporated into the Fourteenth Amendment, should "originalist" jurisprudence of federal action reflect the views of the Founders in 1791, while jurisprudence of state action reflect the much different views of post-Civil War 1868?

In Brown v. Board of Education, Chief Justice Warren wrote for a unanimous Court that the original meaning of the Fourteenth Amendment was "inconclusive" on the question of segregation and that "we cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy v. Ferguson was written. We must consider public education in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws." Was this a valid or invalid form of constitutional analysis? Is there a dynamic of progressive democratic inclusion built into the Reconstruction Amendments and all of the later voting rights amendments (the 17 th, the 19th, the 23rd, and the 24th, for example)?

In Bush v. Gore, five Justices cast aside the rhetoric of "judicial restraint," "federalism" and "original intent" and intervened in the 2000 presidential election to stop the counting of more than 100,000 ballots in Florida. They then attached their names to a statement in the majority decision that Equal Protection consideration of the problem of unequal voting systems would be "limited to the present circumstances," without consequence for the law in other voting cases. Is it compatible with Due Process and the rule of law for justices to make decisions based on a constitutional rule that they announce will apply in a single case, to a single party, with no precedential or doctrinal effect for similar cases?

In Citizens United v. FEC, the majority bypassed several opportunities to resolve the case in favor of the plaintiffs on statutory grounds but rather answered a sweeping question that had not even been presented originally by the parties in the case. Do you agree that it is a breach of Supreme Court practice and protocol for the Court to reach out to decide questions that were not presented to it, and that have not been briefed or analyzed by appellate courts?

In a recent speech, former Supreme Court Justice David Souter said that in most Supreme Court cases,

The explicit terms of the Constitution . . . can create a conflict of approved values, and the explicit terms of the Constitution do not resolve that conflict when it arises. . . . A choice may have to be made, not because language is vague but because the Constitution embodies the desire of the American people, like most people, to have things both ways. We want order and security, and we want liberty. And we want not only liberty but equality as well. These paired desires of ours can clash, and when they do a court is forced to choose between them, between one constitutional good and another one.

Do you agree with his evaluation?

Holding Corporations Accountable: Damages

Although your scholarship is not itself identified with Law-and-Economics, you have been open to diverse views within legal academia, including the economic analysis of law. Would you agree that court-created rules about the availability of legal damages to plaintiffs in tort suits affect the behavior of economic actors in society?

In Exxon Shipping Co. v. Baker, the Supreme Court's conservative bloc reduced from $5 billion to $507.5 million a jury award of punitive damages against Exxon for its recklessness in keeping on an incorrigible and proven alcoholic as the captain of the Exxon Valdez. Do you agree that the Supreme Court's 2008 decision dramatically reduced the incentives for oil companies to correctly follow procedure and to take all reasonable precautions against oil spills?

In his dissenting opinion in the Exxon case, Justice Stevens castigated the five justices in the majority for cutting the punitive damages award down by 90% and inventing out of the blue a new ceiling in maritime tort cases of a 1-1 ratio between compensatory and punitive damages. Would you agree with Justice Stevens, whose seat you may fill, that the "congressional choice not to limit the availability of punitive damages under maritime law" should have been respected by the Supreme Court? (Emphasis added) Do you agree with Justice Stevens that the legislative refusal to create a cap on punitive damages should not be viewed by the Court as "an invitation to make policy judgments on the basis of evidence in the public domain that Congress is better able to evaluate than is this Court"?

After the Court in the Exxon case determined that punitive damages should be capped, it took it upon itself to decide what the cap should be, rather than sending the case back to the appellate level for consideration of this legal issue. When is it appropriate for the Supreme Court to prohibit the appellate courts from having the opportunity to address legal issues?

In Philip Morris USA v. Williams (2007), the Supreme Court by a 5-4 vote reversed a $79.5 million punitive damage award handed down against the Philip Morris Company by a jury which had heard damning evidence of the company's disinformation campaign to suppress the truth about the health effects of smoking. The Court majority found that the Due Process Clause forbids as consideration in a jury's calculation of punitive damages the harm that was caused to the consumer public beyond the actual named parties in the case. Do you agree that this holding negates the purpose of "punitive" damages? Would you have voted like Justice Stevens against this rescue of the tobacco giant and evisceration of tort law protecting the public interest?

In a 5-4 decision in Hoffman Plastic Compounds v. NLRB (2002), the conservatives on the Court stripped a back pay award against a company that had knowingly employed an undocumented alien for several years and then fired him for participating in a union organizing drive. Chief Justice Rehnquist wrote that the law-breaking company was sufficiently punished by having to "conspicuously post a notice to employees setting forth their rights under the NLRA and detailing its prior unfair practices." Justice Stevens and Justice Breyer, who wrote that there is no basis in either labor law or immigration law for destroying the "backpay weapon," argued that the Court was arranging a situation where employers may "conclude that they can violate the labor laws at least once with impunity." Do you agree with the concerns raised by Justices Stevens and Breyer? Should the Court take such concerns into account when reaching a decision?

Rights in Name Only: Access to the Courts

Everyone remembers the Lilly Ledbetter decision (2007) and its subsequent overruling by Congress, but this history is not unusual. Congress has repeatedly been forced to go back and amend civil rights statutes, such as Title VII, the Civil Rights Act and the Voting Rights Act, after five Justices on the Court have read the statutes in pinched and tortured ways to deny plaintiffs relief. What is the general theory under which you would read civil rights laws and identify Congressional intent?

Decisions like Ashcroft v. Iqbal (2009) have imposed stifling new pleading standards on plaintiffs seeking a hearing in court. How do these new standards affect individual litigants' access to justice? What is your philosophy of the importance of access to justice and how would it affect your approach to interpreting the Federal Rules of Civil Procedure?